UC-NRLF 


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LIBRARY 

OF  THE 

University  of  California. 


GIFT 


Class 


I**! 


Publications  of  the  New  York  Society  of  the 
Order  of  the  Founders  and  Patriots  of  America 


No. 


2. 


(TnriTiit5< 


The  Battle  of  Lexington 

As  looked  at  in  London  before 
Chief- Justice  Mansfield  and  a  jury 
in  the  trial  of  John  Home,  Esq., 
for  libel  on  the  British  Government 


By  Hon,  John  Winslow 


Read  before  the  New  York 
Society  of  the  Order  of  the 
Founders  and  Patriots  of 
America,    May    13th,   1897 


Compliments  of 

Che  new  York  Society  of  the  Order  of  the 

founders  and  Patriots  of  America. 

HENRY  LINCOLN  MORRIS,  Secretary, 

253  Broadway,  New  York  City. 


Publications  of   the  New  York  Society  of   the 
Order  of  the  Founders  and  Patriots  of  America 


No. 


2. 


The  Battle  of  Lexington 


As  looked  at  in  London  before 
Chief- Justice  Mansfield  and  a  jury 
in  the  trial  of  John  Home,  Esq., 
for  libel  on  the  British  Government 


By  Hon.  John  Winslow 


Read  before  the  New  York 
Society  of  the  Order  of  the 
Pounders  and  Patriots  of 
America,    May   13th,  1807 


COPyRIGHT  1897,   BY  JOHN   WINSLOW 


PREFACE. 

The  Order  of  the  Founders  and  Patriots  of  America, 
is  an  Historical  and  Patriotic  Society,  consisting  of 
descendants  of  those  who,  within  the  first  fifty  years  after 
the  settlement  of  Jamestown,  came  to  and  settled  in  the 
eight  colonies,  which  afterwards  became  parts  of  the 
United  States.  Its  members  are  also  required  to  show 
that  their  intermediate  ancestors  of  the  Revolutionary 
period  adhered  as  patriots  to  the  cause  of  the  Colonies. 
In  the  month  of  February,  1896,  a  few  gentlemen  met  in 
the  Astor  House,  in  New  York  City,  and  took  the  prelimi- 
nary formal  steps  toward  the  formation  of  the  Order. 
On  the  1 6th  day  of  March,  1896,  nine  of  those  persons, 
namely:  Edward  N.  G.  Greene,  Howard  S.  Robbins, 
Howard  Marshall,  Henry  L.  Morris,  John  Quincy  Adams, 
Ralph  E.  Prime,  Charles  W.  B.  Wilkinson,  Henry  Hall 
and  William  W.  Goodrich,  met  and  founded  the  Order, 
and  executed  the  Certificate  of  Incorporation  of  the  New 
York  Society.  A  plan  of  organization  of  the  Order, 
with  a  general  Constitution  and  By-Laws  for  the  Order, 
was  prepared,  and  on  the  17th  day  of  April,  1896,  was 
adopted  by  the  New  York  Society.  The  latter  then  con- 
sisted of  seventy-eight  gentlemen,  whose  eligibility  had 
been  examined,  and  who  had  been  invited  by  the  Founders 
of  the  Order  to  join  them  as  Charter  Members,  and  par- 
ticipate in  the  formal  organization. 

The  plan  embraced  an  Order,  consisting  of  State 
Societies  and  Chapters,  having  a  central  representative 
body  called  the  General  Court.  Since  the  organization  of 
the  Order,  and  of  the  New  York  State  Society,  societies 
have  also  been  formed  in  New  Jersey,  Connecticut,  Penn- 
sylvania and  Massachusetts,  and  Chapters  of  the  New 
State  Society  have  been  created  in  Albany  and  Syracuse. 

The  first  Governor  of  the  New  York  Society  was 
Col.  Frederick  Dent  Grant,  who  was  succeeded  in  turn 
by  Col.  Ralph  Earl  Prime,  and  he,  in  turn,  by  the  incum- 
bent, Hon.  William  Winton  Goodrich. 

The  Officers  of  the  New  York  Society  for  1897-8  are  as 
follows  : 


228226 


OFFICERS: 

Hon.  WILLIAM  WINTON  GOODRICH,  Governor,    .     Brooklyn 
CHARLES  ALBERT  HOYT,  Deputy-Governor,  .     Brooklyn 

MATTHEW  HINMAN,  Treasurer,  359  Broadway,  New  York  City 
HENRY  LINCOLN  MORRIS,  Secretary, 

253  Broadway,  New  York  City 
SAMUEL  VICTOR  CONSTANT,  States-Attorney, 

New  York  City 
Col.  LEWIS  CHEESMAN  HOPKINS,  Registrar, 

66  Broadway,  New  York  City 
GEORGE  ROGERS  HOWELL,  Historian,  .  .  .  Albany 
Rev.  DANIEL  FREDERICK  WARREN,  D.  D.,  Chaplain, 

Jersey  City  Heights,  N.  J. 

COUNCILORS: 

ONE    YEAR. 
CLARENCE  LYMAN  COLLINS,                                New  York  City 
Mat.  ROBERT  EMMET  HOPKINS,  Tarrytown 

WALTER  STUEBEN  CARTER Brooklyn 

TWO    YEARS. 

Gen.  FERDINAND  PINNEY  EARLE,  New  York  City 

GEORGE  CLINTON  BATCHELLER,     .  New  York  City 

STEPHEN  MOTT  WRIGHT,  ....  New  York  City 

THREE    YEARS. 

Hon.  JOHN  WINSLOW Brooklyn 

JONAS  HAPGOOD  BROOKS,  ....  Albany 

Gen.  STEWART  L.  WOODFORD,  .        .        New  York  City 

In  the  month  of  March,  1897,  the  New  York  Society 
invited  the  Hon.  John  Winslow,  an  associate  of  the  Order, 
to  read  before  the  Society  a  paper  on  the  legal  aspects  of 
the  Battle  of  Lexington,  ^as  viewed  in  England  at  the 
time.  He  cheerfully  acceded  to  the  request,  and  was 
prepared  to  read  his  paper  at  the  annual  meeting  held  on 
the  anniversary  of  that  battle,  but  the  circumstances  were 
such  that  the  reading  was  postponed  to  a  special  social 
meeting  held  at  the  Windsor  Hotel,  in  New  York  City,  on 
the  evening  of  Thursday,  the  13th  day  of  May,  1897. 
The  paper  was  regarded  as  a  work  of  so  much  general 
interest  and  importance  as  to  demand  publication,  and  the 
Council  of  the  New  York  Society  appointed  "a  commit- 
tee, consisting  of  Col.  Ralph  E.  Prime  and  Edward 
Hagaman  Hall,  to  request  our  associate,  Hon.  John 
Winslow,  to  furnish  a  copy  of  his  paper  (on  the  legal 
aspects  of  the  Battle  of  Lexington)  for  publication  by  our 
Society,  and  that  this  committee,  in  conjunction  with  the 


regular   Printing  Committee,   have  the   paper  published 
and  distributed." 

Pursuant  to  the  direction  of  the  Council,  the  following 
correspondence  ensued  : 

63  Hawthorne  Avenue, 

Yonkers,  N.  Y.,  June  23rd,  1897. 
Hon.  JOHN  WINSLOW: 

Dear  Sir  : — It  gives  me  great  pleasure  to  inform  you, 
that  it  is  the  earnest  desire  of  the  Council  of  the  New  York  Society 
of  the  Order  of  the  Founders  and  Patriots  of  America,  that  you 
would  consent  to  the  publication,  as  one  of  our  historical  papers,  of 
your  paper  on  the  legal  aspects  of  the  Battle  of  Lexington,  etc., 
recently  read  by  you  before  that  Society,  at  a  social  meeting  held  at 
the  Windsor  Hotel.     I  hope  this  will  meet  your  pleasure. 

In  furtherance  of  such  measure,  the  Council  appointed  a  com- 
mittee, consisting  of  the  undersigned  and  Mr.  Edward  Hagaman 
Hall,  to  request  your  consent  to  the  publication,  and  to  ask  of  you 
a  copy  of  the  paper  to  be  so  published. 

We  regard  the  subject  matter  of  more  than  historical  interest, 
and  do  not  fail  to  recognize  the  fact  that  it  will  also  be  of  great 
interest  to  the  members  of  the  legal  profession.  Hence  we  have  in 
mind  the  issue  of  such  a  number  of  copies  as  will  not  only  supply 
the  members  of  our  Society,  but  the  public  libraries,  and  also  all 
those  of  your  profession  and  mine  who  shall  desire  it. 

The  Committee  trusts  that  you  will  favorably  answer  the  desire 
expressed. 

Assuring  you  of  my  own  sincere  regard,   I  beg  to  assure  you 
also  of  the  unaffected  regard  of  your  associates. 
For  the  Committee, 

Yours,  etc., 
(Signed)  RALPH   E.    PRIME. 


Brooklyn,  N.  Y.,  June  24th,  1897. 
Dear  Col.  R.  E.  PRIME: 

Referring  to  your  kind  and  appreciative  letter  of  the  23rd 
inst.,  I  infer  that  the  Council  ask  consent  for  the  publication  of  my 
Lexington-London  paper  because,  among  other  reasons,  they 
believe  it  will  be  of  service  to  our  Society  as  a  part  of  its  proper 
work.  This  alone  is  sufficient  to  induce  me  to  comply  with  the 
request. 

If  I  had  known  how  much  of  time  and  research  the  paper  would 
require,  I  might  not,  with  other  pressing  engagements,  have  had 
courage  for  the  work.  The  subject,  I  believe,  has  never  before  been 
presented  as  illustrative  of  the  American  Revolution,  and  of  the 
view  taken  of  it  by  British  jurists. 

Very  respectfully  and  truly  yours, 

(Signed)  JOHN    WINSLOW. 


THE  BATTLE  OF  LEXINGTON,  as  looked  at  in 
London,  in  the  trial  of  John  Home,  Esquire,  before 
Chief  Justice  Mansfield  and  a  jury,  for  libel  on  the  British 
Government,  is  the  subject  to  which  your  attention  is 
called.  It  is  easy  enough  for  us,  Americans,  descendants 
of  Revolutionary  patriots,  to  see  the  battle  with  admiring 
eyes  and  grateful  hearts.  Some  of  us,  perhaps,  never 
stop  to  think,  or  care,  how  the  thing  appeared  in  London. 
While  we  look  with  reverence  on  the  monuments  at  Lex- 
ington and  Concord  and  Bunker  Hill,  it  is  not  apt  to  occur 
to  us  that  in  London,  and  all  Britain,  our  fathers  appeared 
to  be  the  most  irreverent  set  of  men  that  ever  harassed 
a  crown.  It  may  be  of  some  use,  then,  to  see  ourselves 
as  others  across  the  Atlantic  saw  us  in  the  time  of  the 
Revolution.  We  may  do  so  without  in  the  least  conceding 
anything  to  the  credit  of  the  British  statesmen  who 
advised  the  attempt  of  Great  Britain  to  crush  the  North 
American  Colonies.  But,  in  looking  at  the  other  side,  as 
it  appears  in  the  noted  trial  of  John  Home,  Esq.,  we  may 
possibly  gain  a  larger  view  of  what  was  involved  in  the 
struggle  of  the  Revolution ;  or,  at  least,  we  may  see  more 
clearly  the  environments  of  the  time,  and  why  the  achieve- 
ments of  our  fathers  seemed  glorious  to  them,  and  do  to 
us,  and  why,  to  the  great  men  who  controlled  the  British 
Government,  the  breaking  away  of  the  Colonies  seemed 
one  of  the  saddest  chapters  in  history.  We  shall  also  find 
in  this  trial  a  significant  chapter  in  the  history  of  the  long 
struggle  for  freedom  of  thought  and  speech  in  the  nations 
not  considered  barbaric,  more  especially  among  English 
speaking  people.  We  shall  see  that  the  treatment  accorded 
Mr.  Home  by  his  government  in  the  last  quarter  of  the 
eighteenth  century,  was  mild  and  humane  compared  with 
the  drastic  judgments  in  similar  cases  inflicted  early  in 
the  seventeenth  century,  under  the  reign  of  the  Stuarts, 
by  their  satellites,  such  as  the  Twelve  Judges.  Yet  Lord 
Brougham,  who  was  born  about  the  time  Home  was  tried, 

7 


saw  and  said,  near  the  middle  of  the  nineteenth  century, 
that  Home's  punishment  was  an  outrage  upon  the  rights 
of  personal  freedom  of  opinion,  thus  showing  the  progres- 
sive history  of  what  now  to  us  seems  axiomatic  touching 
personal  liberty.  Some  one  has  said  that,  in  civilized 
nations,  the  most  important  of  human  affairs  sooner  or  later 
get  before  a  court  and  jury.  And  so  it  will  be  seen  that 
the  principles  and  leading  causes  of  the  Revolution  came 
to  be  considered  by  Lord  Mansfield  and  a  jury  in  the  trial 
of  Home.  The  battles  of  Lexington  and  Concord  were 
practically  one  battle.  The  objective  on  the  part  of  the 
British  was  at  least  two-fold  ;  it  was  to  seize  some  army 
stores  in  Concord,  and  also  to  seize  two  distinguished 
gentlemen,  Samuel  Adams  and  John  Hancock,  who  were 
with  Rev.  Jonas  Clark  at  Lexington,  and  were  members 
of  the  Provincial  Congress  at  Concord  which  had  adjourned 
four  days  before  the  battle.  The  intended  seizure  was  a 
failure. 

The  defendant's  name  in  the  trial  for  libel  is  John  Home, 
Esq.,  but  in  later  life  he  was  known  as  John  Home  Tooke. 
This  change  of  name  is  explained  by  the  fact  that,  in 
resisting  with  much  ability  an  enclosure  bill  pending  in 
the  Commons,  he  gained  the  favor  of  Mr.  Tooke.  of  Pur- 
ley,  who  said  he  would  make  him  his  heir,  and  so,  in  1782, 
Home  changed  his  name  to  Tooke  as  a  token  of  esteem 
for  his  friend  and  patron,  and  received  about  8,000  pounds 
from  his  property.  But,  inasmuch  as  in  the  trial  under 
consideration  he  was  known  as  John  Home,  Esq.,  he  will 
be  so  referred  to  in  this  paper.  Home,  who  was  well 
known  as  a  leader  in  politics,  and  a  philologist,  was  born 
in  Westminster  in  1736,  and  died  in  181 2.  His  father,  a 
man  of  means,  gave  his  son  good  opportunities  for  educa- 
tion at  Westminster  School,  at  Eton,  and  Cambridge 
University.  Against  his  wish,  but  in  obedience  to  his 
father,  he  took  orders  and  was  a  curate  in  Kent.  Having 
a  strong  liking  for  the  law,  he  entered,  in  1756,  as  a  stu- 
dent at  the  Middle  Temple,  but  soon  after  returned  to  the 
Church.  Three  years  later  he  traveled  on  the  continent. 
In  1765  he  began  his  political  life,  writing  pamphlets  on 
public  questions,  and  soon  became  intimate  with  Wilkes, 
the  famous  politician.  He  was  active  in  supporting  the 
election  of  Wilkes  from  Middlesex.     In  1769  he  was  one 

8 


of  the  founders  of  the  society  for  supporting  the  Bill  of 
Rights  ;  soon  after  he  became  involved  in  quarrels  with 
Wilkes  which  impaired  his  popularity.  After  consider- 
able opposition  he  received,  in  1771,  his  degree  of  M. A. 
from  Cambridge.  In  1773  he  resigned  his  living,  with 
the  intention  of  studying  law. 

Home  bitterly  opposed  the  British  policy  toward  the 
American  Colonies,  and  in  the  course  of  his  opposition  he 
wrote  the  famous  advertisement  which  led  to  the  accusa- 
tion, by  the  information  of  the  Attorney-General,  Lord 
Thurlow,  of  libel  on  the  King  and  Government. 

Lord  Mansfield,  early  in  the  trial,  referred  to  the  battle 
of  Lexington  as  "  the  occasion  at  Lexington,"  but  later 
took  a  graver  view.  The  descriptive  lines  of  Humphrey, 
who  was  regarded  by  his  cotemporaries  as  more  especially 
the  poet  of  the  Revolution,  reflected  the  colonial  view : 

"As  when  dark  clouds  from  Andes  towering  head, 
14  Roll  down  the  skies  and  'round  th'  horizon  spread, 
44  With  thunders  fraught,  the  blackening  tempest  sails, 
"And  bursts  tremendous  o'er  Peruvian  vales — 
14  So  broke  the  storm  on  Concord's  fatal  plain." 

1 '  Then  the  shrill  trumpet  echoed  from  afar, 
44  And  sudden  blazed  the  wasting  flame  of  war, 
44  From  State  to  State,  swift  flew  the  dire  alarms, 
"And  ardent  youths  impetuous  rushed  to  arms." 

When  the  news  of  the  battle  of  Lexington  reached 
London,  Home  was  aroused,  and  denounced  the  attack 
made  by  General  Gage,  as  murder,  and  proposed  a  sub- 
scription of  100  pounds,  to  be  paid  to  Dr.  Franklin  for  the 
American  widows  and  orphans  of  the  troops  at  Lexington 
and  Concord. 

The  standing  of  Home  as  a  political  critic  is  seen  in 
the  fact  that  the  name  of  John  Home  Tooke  appears  in 
the  long  list  of  eminent  names  suspected  of  the  authorship 
of  the  "  Letters  of  Junius. "  To  have  been  thus  suspected 
was  a  high  tribute  to  Home's  intellectual  force.  It  is  not 
so  easy  now  to  comprehend  the  tremendous  impression 
made  by  Junius  as  it  was  for  his  cotemporaries.  To  help 
in  this  respect,  let  us  listen  in  the  House  of  Commons  to 
Burke,  who  thus  graphically  referred  to  it  : 


"  How  comes  this  Junius  to  have  broke  through  the 
cobwebs  of  the  law,  and  to  range  uncontrolled,  unpunished 
through  the  land  ?  The  myrmidons  of  the  court  have 
been  long,  and  are  still,  pursuing  him  in  vain.  They  will 
not  spend  their  time  upon  me  or  you.  No,  they  disdain 
such  vermin,  when  the  mighty  boar  of  the  forest,  that 
has  broke  through  all  their  toils,  is  before  them.  But 
what  will  all  their  efforts  avail  ?  No  sooner  has  he 
wounded  one  than  he  lays  down  another  dead  at  his  feet. 
For  my  part,  when  I  saw  his  attack  upon  the  King,  I  own 
my  blood  ran  cold.  I  thought  he  had  ventured  too  far, 
and  there  was  an  end  of  his  triumph.  Not  that  he  had  not 
asserted  many  truths,  but  while  I  expected  in  this  daring 
flight  his  ruin  and  fall,  behold  him  rising  still  higher  and 
coming  down  souse  upon  the  two  Houses  of  Parliament. 
Yes,  he  did  make  for  his  quarry,  and  you  still  bleed  from 
the  wounds  of  his  talons  ;  you  crouched,  and  still  crouch 
beneath  his  rage.  Nor  has  he  dreaded  the  terrors  of  your 
brow,  sir;  he  has  attacked  even  you — he  has,  and  I  believe 
you  have  no  reason  to  triumph  in  the  encounter.  In  short, 
after  carrying  away  our  royal  eagle  in  his  pounces,  and 
dashing  him  against  a  rock,  he  has  laid  you  prostrate. 
King,  Lords  and  Commons  are  but  the  sport  of  his  fury." 

To  have  been  supposed  to  be  Junius,  who  could  do 
such  destructive  work  and  send  consternation  among  the 
leading  British  publicists,  was  a  fine  tribute  to  Home. 
One  of  the  reasons  that  led  some  to  think  that  Home  was 
Junius  was  his  bitter  attacks  upon  Mansfield.  Mansfield, 
and  other  legal  advisers  of  the  crown,  labored  assiduously 
to  find  how  this  "  boar  of  the  forest,"  as  Burke  called  him, 
could  be  brought  to  punishment.  Burke  himself  was  once 
charged  with  being  the  mysterious  author,  but  denied  it 
in  the  House  of  Commons. 

In  about  1794,  the  Hon.  John  A.  Graham,  then  a 
scholarly  member  of  the  New  York  bar,  having  occasion 
to  visit  England  on  ecclesiastical  business  for  the  Episco- 
pal Convention  of  Vermont,  met,  as  he  tells  us,  many 
eminent  men,  including  Home,  in  whom  he  became 
much  interested.  Graham  became  impressed,  as  others 
were,  that  Home  was  Junius.  After  his  return  to  Amer- 
ica, Mr.  Graham  studied  quite  elaborately  Home's  style 
of  expression  and  thought  and  animus  on  public  questions, 


and  thus  became  more  thoroughly  convinced  that  Home 
was  the  mysterious  writer.  In  1828  Mr.  Graham  pub- 
lished a  book  on  the  subject,  giving  his  reasons  in  detail 
for  his  conclusion.  In  this  book  he  speaks  of  his  departed 
friend  in  cordial  terms  and  with  great  respect,  and  says  of 
him  :  "he  now  stands  '  clarum  et  vencrabile  notnen,1  "  In 
the  course  of  his  argument  Graham  says:  "His  genius 
was  transcendent,  his  talents  of  the  first  order,  his  strug- 
gles for  liberty  sincere,  his  privations  and  sufferings 
great,  and  his  patriotism  was  undoubted."  In  another 
connection  Graham  refers  to  Home's  generous  friendship 
for  America.  There  is  in  this  book  a  fine  steel  engraving 
of  Home,  which  gives  you  the  impression  that  he  was  a 
man  of  refinement,  intelligence,  and  of  solid  character, 
Our  venerable  friend,  Hon.  Benjamin  D.  Silliman,  of 
Brooklyn,  tells  me  he  remembers  Mr.  Graham  very  well. 
Lord  Campbell,  in  referring  to  the  trial,  speaks  of  Home's 
"great  acuteness  and  power  of  sarcasm."  In  Table 
Talks,  by  Samuel  Rogers,  several  instances  are  given  of 
Home's  wit  and  repartee. 

This  seeming  diversion  is  made  that  it  might  more 
clearly  appear  what  manner  of  man  Mansfield  had  to  deal 
with,  at  the  interesting  trial  when  Home  was  a  defendant 
charged  with  a  vile  libel  on  the  Government.  Mansfield 
for  many  years  had  been  a  powerful  Tory  in  British  poli- 
tics. That  he  was,  all  his  public  life,  a  man  of  great  ability 
and  learning,  especially  in  jurisprudence,  and  much 
respected,  is  not  questioned.  His  decision  in  the  famous 
Somerset  (slave)  case  in  177 1,  in  favor  of  liberty,  will  be 
remembered.  This  is  Lord  Campbell's  estimate  of  Mans- 
field as  Chief  Justice  : 

"I  think  it  must  be  admitted  that  he  is  one  of  the 
greatest  who  has  ever  appeared,  and  that  while  he  impar- 
tially dealt  out  justice  to  the  litigants  who  appeared  before 
him,  by  the  enlightened  principles  which  he  laid  down 
and  the  wise  rules  which  he  established,  he  materially 
improved  the  jurisprudence  of  his  country.  This  is  surely 
fame  little  inferior  to  that  of  winning  battles  or  making 
discoveries  in  science." 

While  in  a  court  room,  Daniel  Webster  wrote  a  letter 
to  his  friend,  Mr.  Blatchford,  in  1849,  saying  : 

"  Mr.  B.  R.  Curtis  is  now  replying  to  Mr.  Choate  on  a 


law  question.  He  is  very  clear,  and  has  competent  learn- 
ing. His  great  mental  characteristic  is  clearness,  and  the 
power  of  clear  statement  is  the  great  power  at  the  bar. 
Chief  Justice  Marshall  possessed  it  in  a  most  remarkable 
degree,  so  does  Lord  Lyndhurst.  If  to  this  character  of 
clearness  you  add  fullness  and  force,  you  make  a  man, 
whether  as  a  lawyer,  an  historian,  or  indeed  poet,  whose 
discourse  or  writing  merits  application  of  those  lines 
of  Sir  John  Denham's  u  Cooper's  Hill :  " 

"Though  deep,  yet  clear;  though  gentle,  yet  not  dull; 
Strong,  without  rage;  without  o'erflowing,  full." 

Mr.  Webster  adds  :  "I  think  the  judgment  of  Lord 
Mansfield  came  the  nearest  to  this  high  standard." 

When  the  troubles  of  his  government  with  the  Amer- 
ican Colonies  began  to  be  serious,  there  was  no  public 
functionary  in  Great  Britain  more  ready  to  serve  George 
the  Third,  or  more  certain  of  the  speedy  triumph  of  the 
Crown  over  the  Colonies,  than  Lord  Mansfield.  Mansfield's 
prolonged  and  bitter  controversies  with  Chatham,  who 
tried  in  befriending  America  to  serve  his  own  country  the 
better,  give  abundant  evidence  of  his  intense  partisanship 
for  the  Crown  in  the  struggle  of  the  Colonies.  Mansfield 
advocated  the  Stamp  Act  and  aided  in  preparing  it,  and 
refused  to  listen  to  arguments  for  its  repeal  until,  as  he 
said,  the  Americans  were  first  compelled  to  submit  to  the 
power  of  Parliament,  and  exhibit  ' '  the  most  entire  obedi- 
ence before  an  inquiry  could  be  had  into  their  grievances." 
These  and  similar  opinions  made  the  Chief  Justice  a  target 
for  Junius,  as  his  unmerciful  attacks  upon  Mansfield  show. 

British  arrogance  was  shown  in  many  ways,  more 
before  the  surrender  of  Burgoyne  than  in  the  later  years 
of  the  war,  an  instance  of  which  was  exhibited  by  Lord 
Stormont,  whom  Franklin  and  his  associate,  Mr.  Dean, 
had  addressed  twice  by  letter  in  1777  as  to  the  cruel  treat- 
ment of  American  prisoners,  and  proposals  for  exchange. 
The  first  letter  of  February  23d  was  not  noticed  by  Stor- 
mont, but  after  another,  of  April  2d,  was  sent,  his  lordship 
wrote  an  insolent  reply,  saying  :  "The  King's  ambassa- 
dor receives  no  applications  from  rebels,  unless  they  come 
to  implore  his  Majesty's  mercy. "  Franklin  and  Dean  sent 
the  letter  back,   saying:    "In  answer  to  a  letter  which 

12 


concerns  some  of  the  most  material  interests  of  humanity 
and  of  the  two  nations,  Great  Britain  and  the  United 
States  of  America,  now  at  war,  we  received  the  enclosed 
indecent  paper  as  coming  from  your  Lordship,  which  we 
return  for  your  Lordship's  more  mature  consideration." 
This  correspondence  is  given  by  Bigelow  in  his  life  and 
letters  of  Franklin.  But  in  April,  1778,  after  Burgoyne's 
surrender,  we  find  the  tone  changed,  and  overtures  made 
to  Franklin  at  Paris  as  to  terms  of  peace.  All  this  change 
from  arrogance  to  anxiety  came  too  late  to  help  Mr. 
Home.  Enough  has  been  said  to  show  by  what  animus 
Mansfield  was  moved  in  the  trial  of  Home.  Though  the 
Colonies  had  many  friends  in  England  the  war  against 
them  was  popular  there,  and  Mansfield's  herculean  efforts 
to  crush  the  rebellion  and  maintain  British  ascendancy  were 
generally  approved.  The  prosecuting  officer  at  the  trial 
was  Lord  Thurlow,  then  the  Attorney-General.  Extended 
reference  to  the  distinguished  career  of  Lord  Thurlow 
need  not  here  be  made.  It  is  sufficient  to  say  that  in 
vigorously  conducting  the  trial  for  the  Government  he  was 
full  of  enthusiastic  and  savage  loyalty  to  the  King,  and 
held  the  American  Colonies  in  the  usual  Tory  contempt. 

Here,  then,  we  have  a  group  of  distinguished  and 
eminent  men  taking  part  or  coming  into  notice  in  this 
trial.  There  was  Lord  Mansfield,  presiding,  and  his 
associate,  Lord  Aston,  and  Lord  Thurlow  prosecuting,  as 
Attorney-General,  aided  by  two  able  London  lawyers. 
The  defendant  was  a  man  of  remarkable  qualities,  as  we 
have  seen.  Then  Dr.  Franklin  comes  into  notice  as  the 
proposed  almoner  of  the  fund  raised  by  subscription  for 
the  Lexington  sufferers.  The  battle  of  Lexington  occurred 
about  two  weeks  before  Dr.  Franklin's  arrival  back  in 
America  from  London,  where  he  had  been  in  service  as  a 
representative  of  American  interests,  and  especially  as  an 
agent  of  the  Province  of  Massachusetts  Bay.  As  all 
Europe  knew,  Franklin  was  a  master  mind  in  American 
affairs.  Before  this  legal  tribunal  were  the  great  ques- 
tions involved  in  the  Declaration  of  Independence.  It  is 
not  easy  to  find  in  legal  history,  a  trial  conducted  by  such 
eminent  jurists  and  involving  questions  of  such  national 
importance.  As  the  trial  proceeded,  the  mighty  power  of 
British  public  opinion,  supporting  an  arrogant  King,  was 

13 


felt  there  and  elsewhere.  With  such  gigantic  forces 
against  him,  poor  Mr.  Home  had  an  unequal  contest  and 
a  hard  time.  Few  felt  or  dared  to  express  sympathy  for 
him.     In  short,  Britain  gave  him  the  M  marble  heart." 

The  trial  is  reported  in  about  thirty  folio  pages  of  the 
eleventh  volume  of  "A  Complete  Collection  of  State  Trials 
and  Proceedings  for  High  Treason  and  Other  Offences" 
commencing  with  the  nth  year  of  the  reign  of  King 
Richard  the  Second,  and  ending  with  the  16th  year  of  the 
reign  of  King  George  the  Third,  published  in  London  in 
1 781.  The  proceedings  were  published  by  the  defendant, 
Mr.  Home,  from  Gurney's  shorthand  notes.  The  first 
part  of  the  trial,  up  to  and  including  the  verdict,  was 
before  a  jury  and  Lord  Mansfield  as  Chief  Justice,  and  his 
associate,  Aston,  of  King's  Bench,  at  Guildhall.  The 
second  part  of  the  trial,  including  argument  on  motion  for 
judgment,  was  in  the  Court  of  King's  Bench,  Westminster. 
The  trial  before  the  jury  began,  as  it  happened,  on  our 
Independence  Day,  July  4th,  and  the  later  proceedings 
were  on  the  19th  and  24th  of  November,  1777.  The  charge 
against  the  defendant,  stated  in  plain  terms,  was  that  at 
a  special  meeting  of  the  Constitutional  Society,  the  de- 
fendant, Home,  at  King's  Arms  Tavern,  Cornhill,  June 
7th,  1775,  during  an  adjournment  of  said  Society,  proposed 
that  a  subscription  should  be  immediately  entered  into  by 
such  of  the  members  present  who  might  approve  the 
purpose,  for  raising  the  sum  of  100  pounds,  to  be  applied 
to  the  relief  of  the  widows,  orphans  and  aged  parents  of 
our  beloved  American  fellow  subjects,  who,  faithful  to  the 
character  of  Englishmen,  preferring  death  to  slavery, 
were,  for  that  reason  only,  inhumanly  murdered  by  the 
King's  troops  at  or  near  Lexington  and  Concord,  in  the 
province  of  Massachusetts,  on  the  19th  day  of  April,  1775. 
It  was  further  alleged  that  the  sum  was  immediately  col- 
lected, and  it  was  thereupon  resolved  that  Mr.  Home  do 
pay  the  next  day  into  the  hands  of  Messrs.  Brownes  & 
Collinson,  the  said  sum  of  100  pounds,  and  that  Dr. 
Franklin  be  requested  to  apply  the  same  to  the  above 
mentioned  purpose.  Further  technical  allegations  of  the 
information  of  the  Attorney-General  were  "  that  the 
said  John  Home,  in  contempt  of  our  said  Lord  and  King, 
and  in  open  violation  of  the  laws  of  this  kingdom,  to  the 


evil  and  pernicious  example  of  all  others  in  the  like  case 
offending,  and  also  against  the  peace  of  our  said  present 
Sovereign  Lord,  the  King,  his  Crown  and  dignity,  did 
these  things,  and  the  said  Attorney-General  of  our  said 
Lord,  the  King,  further  gives  the  Court  here  to  under- 
stand and  be  informed  that  said  John  Home,  being  such 
person  as  aforesaid,  again  unlawfully,  wickedly,  mali- 
ciously and  seditiously,  intending,  devising  and  contriving, 
as  aforesaid,  afterwards,  to  wit  :  on  the  9th  day  of  June, 
in  the  fifteenth  year  aforesaid,  with  force  and  arms,  at 
London  aforesaid,  in  the  parish  and  ward  aforesaid,  wick- 
edly, maliciously  and  seditiously  printed  and  published,  and 
caused  and  procured  to  be  printed  and  published  in  a  cer- 
tain newspaper,  entitled  '  The  Morning  Chronicle,  and 
Londo7i  Advertiser,'  a  certain  other  false,  wicked,  mali- 
cious, scandalous  and  seditious  libel  of  and  concerning 
his  said  Majesty's  government  and  the  employment  of  his 
troops,  according  to  the  tenor  and  effect  following,  that  is 
to  say."  The  substance  of  the  former  allegation  is  here 
repeated,  with  the  additional  statement  of  the  publication, 
and  the  newspaper's  name.  The  form  of  the  accusation 
was  that  of  information  in  the  King's  Bench,  by  the 
Attorney-General,  for  libel.  This  proceeding  is  reached 
in  our  modern  practice,  in  result,  by  indictment  before  a 
grand  jury.  The  law  of  England  permitted  the  Attorney- 
General  to  proceed  by  information,  and  not  by  indictment, 
if  he  so  determined.  The  information  goes  on  to  allege 
the  payment  of  the  money  raised  to  Dr.  Franklin,  for  the 
purposes  stated,  and  is  signed  by  E.  Thurlow,the  Attorney- 
General. 

There  seems  to  have  been  no  difficulty  in  procuring  a 
jury,  and  the  proceedings  opened  by  a  long  argument  pro 
and  con,  on  the  question  of  the  right  of  the  Attorney- 
General  to  reply  to  the  defendant's  argument.  This  dis- 
cussion, though  extended,  is  not  important  for  the  purposes 
of  this  paper.  Lord  Mansfield  ruled  that  the  Attorney- 
General  could  reply  if  he  saw  cause  to  do  so.  Near  the 
close  of  the  argument  Lord  Mansfield  seems  to  have  lost 
his  patience,  and  said  to  Home :  "  There  must  be  an  end. " 
Mr.  Home  replied :  "  Not  of  this  objection?"  Lord  Mans- 
field said:  "No,  but  an  end  of  going  out  of  the  case. 
You  must  behave  decently  and  properly."      Mr.    Home 

J5 


replied:  "I  will  surely  behave  properly."  Then  Mr. 
Home,  who  seems  to  have  been  fond  of  satire,  said: 
"Now,  then,  my  Lord,  I  entreat  you  to  let  me  'decently' 
tell  you  of  the  situation  you  have  put  me  into."  The 
witnesses  examined  for  the  Government  proved  the  hand- 
writing of  the  alleged  libeller  to  be  that  of  Mr.  Home, 
and  also  the  publication  of  the  newspapers  by  the  printers, 
and  then  the  Attorney-General  rested.  Mr.  Home  was 
careful  to  prove,  on  cross-examination  of  one  of  the 
printers,  that  he  told  this  printer  that  he  asked  no  favors, 
and,  if  the  Government  intervened,  to  disclose  at  once 
who  was  the  author  of  the  circular  and  advertisement. 
The  Attorney-General  then  rested  his  case,  saying:  M  My 
Lord,  we  have  done."  Mr.  Home  then  proceeded  to 
address  the  jury,  and  in  his  first  sentence  hit  the  judge, 
saying:  "I  am  much  happier,  gentlemen,  in  addressing 
myself  to  you,  and  believe  I  shall  be  much  more  fortu- 
nate, as  well  as  happy,  than  in  addressing  myself  to  the 
judge."  Abruptness  between  the  bench  and  the  bar 
seems  to  have  been  the  style  of  that  period,  another 
instance  of  which  was,  when  Dunning — afterwards  Lord 
Ashburton — was  stating  the  law  to  a  jury  at  Guildhall, 
Lord  Mansfield  interrupted  him,  saying:  "  If  that  be  law, 
I'll  go  home  and  burn  my  books."  ■•  My  Lord,"  replied 
Dunning,  "you  had  better  go  home  and  read  them." 
Home  reminds  the  jury  that  the  verdict  must  be  their 
own,  and  not  the  judge's.  He  complains  that  the  proceed- 
ings against  him  are  by  information  of  the  Attorney- 
General  ex-officio.  He  says,  that  by  information  the 
Attorney-General  may  accuse  whom  he  pleases,  and  what 
he  pleases,  and  when  he  pleases,  and  all  this  without 
resort  to  a  grand  jury,  and  that  because  it  is  the  pretended 
suit  of  the  crown.  He  urged  that  he  ought  not  to  be 
accused  on  the  ipse  dixit  of  the  Attorney-General,  but 
upon  the  oaths  of  witnesses  that  are  called  before  a  grand 
jury  upon  their  responsibility  when  they  find  an  indict- 
ment. It  seems  that  at  this  moment  the  notorious  Mr. 
Wilkes  was  sitting  near  Lord  Mansfield  on  the  bench,  and 
having  some  pleasant  conversation,  accompanied  by  smiles, 
though  in  former  years  Mansfield  and  Wilkes  hnd  been 
intensely  antagonistic.  Home  mentions  that  they  are 
both  laughing,  he  supposes,  at  his  expense.     He  declares 

16 


that  he  will  say  "  murder  "  again  and  again,  when  troops 
kill  people  unlawfully.  He  says  that  if  there  was  no  war 
in  America,  when  the  people  at  Lexington  were  killed, 
then  it  is  right  to  call  it  "murder,"  and  urges  that  it 
could  not  be  said  there  was  a  war  until  after  General  Gage 
issued  his  proclamation  of  warning,  which  was  after  the 
battle  of  Lexington.  Before  that,  America  did  not  know 
it ;  how,  then,  could  he,  Mr.  Home,  be  expected  to  know  it? 
Home  said  to  the  jury:  "Gentlemen,  I  shall  desire, 
by- and- by,  for  your  satisfaction  and  mine,  to  find  out 
whether  there  is  one  man  in  the  country  that  believes 
me  guilty  of  the  crime  laid  to  my  charge ;  a  crime  that  is 
to  have  a  punishment  which  is  called  by  the  law  a  tem- 
porary death,  and  exclusion  from  society,  imprisonment. " 
He  charged  that  the  apparent  object  of  this  prosecution 
is  "to  take  what  little  money  out  of  my  pocket  I  may 
have  there,  and  to  imprison  me  and  exclude  me  from 
that  society  of  which  I  have  rendered  myself  unworthy.  ** 
It  gives  him  pleasure,  he  says,  "  to  see  that  there  is'* 
(referring  to  Wilkes)  "by  the  judge  who  is  now  trying  me, 
a  gentleman  who,  as  well  as  myself,  has  charged  the 
King's  troops  with  murder;  a  charge  which,  at  that  time, 
excited  great  abhorrence  and  detestation  against  him. 
The  judge  and  that  gentleman  have  enjoyed  each  other's 
company  exceedingly. "  This  remark  caused  laughter  in 
the  audience.  "Well,  gentlemen,"  turning  towards  Lord 
Mansfield  and  Mr.  Wilkes,  "I  have  caused  another  laugh 
between  the  gentlemen.  It  gives  me  pleasure  to  think,  if 
I  am  to  come  out  of  prison — if  you  are  so  kind  as  to  put 
me  there — I,  too,  may  have  the  honor,  if  it  be  one,  of 
sitting  cheek  by  cheek  with  the  judge,  and  laughing  at 
some  other  libeller."  In  the  course  of  his  four  hours* 
argument  Mr.  Home  declares  this  oppressive  prosecution 
against  him  by  the  Attorney-General,  who  is  the  tool  of 
the  Minister,  is  not  for  crimes  against  the  constitution,, 
but  for  partial  political  opinions,  and  they  who  are  pil- 
loried or  imprisoned  to-day  may  be,  for  the  same  acty 
pensioned  to-morrow,  just  as  the  hands  change;  if  this 
party  goes  down,  it  is  libel ;  if  it  comes  up,  it  is  merit. 
He  asserts  that  it  was  true,  that  under  a  good  Minister 
there  are  no  prosecutions  for  libel ;  under  a  bad  Minister, 
you  meet  with  little  else.     He  takes  the  ground  that  what 

*7 


might  be  a  libel  if  written  now,  may  not  have  been  a  libel 
at  the  time  it  was  written ;  in  other  words,  his  view  was 
that  when  he  published  his  advertisement  in  the  news- 
papers, it  was  not  really  understood  that  there  was  a  war 
in  America ;  but  now  that  the  war  has  been  going  on  for  two 
years,  if  a  similar  publication  were  made  it  would  be  more 
open  to  the  charge  of  libel  on  the  King  and  Government. 
It  seems  that  the  Government  had  previously  put  the 
printers  on  trial,  where  there  was  a  conviction  and  a 
sentence,  but  the  sentence  was  suspended,  and  referring 
to  this,  he  says:  "If  they  justify  their  sentence  on  the 
printers,  I  will  justify  the  Court  for  the  most  ample 
punishment  they  can  inflict  on  me.  If  I  am  guilty,  no 
man  on  earth  so  guilty;  it  was  the  most  deliberate 
act  of  my  life ;  it  was  thought  of  long  before  I  did  it.  I 
made  the  motion  ;  I  caused  the  meeting  ;  I  subscribed  a 
great  part  of  the  money  ;  I  procured  the  rest  from  my 
particular  intimate  friends. "  He  argues  that  the  work  of 
the  Attorney-General,  in  pushing  the  prosecution,  is  not 
creditable  to  him  or  his  Government,  and  that  what 
occurred  at  the  so-called  battle  of  Lexington  was,  in  fact, 
murder.  He  then  reads  in  evidence,  a  report  of  the  bat- 
tle, by  an  officer  in  the  British  army,  who  took  part  in  it, 
one  Captain  Edward  Thoroton  Gould.  I  do  not  remember 
to  have  seen  this  report  of  the  battle  in  any  American 
book,  and,  as  it  is  short  and  easily  understood,  will  read  it. 
44 1,  Edward  Thoroton  Gould,  of  His  Majesty's  Own 
regiment  of  foot,  being  of  lawful  age,  do  testify  and 
declare,  that  on  the  evening  of  the  18th  instant,  under 
the  orders  of  General  Gage,  I  embarked  with  the  light 
infantry  and  grenadiers  of  the  line,  commanded  by  Colonel 
Smith,  and  landed  on  the  marshes  of  Cambridge,  from 
whence  we  proceeded  to  Lexington.  On  our  arrival  at 
the  place,  we  saw  a  body  of  provincial  troops,  armed,  to 
the  number  of  sixty  or  seventy  men.  On  our  approach, 
they  dispersed,  and  soon  after  firing  began ;  but  which 
party  fired  first  I  cannot  exactly  say,  as  our  troops  rushed 
on,  shouting  and  huzzaing  previous  to  the  firing,  which 
was  continued  by  our  troops  so  long  as  any  of  the  provin- 
cials were  to  be  seen.  From  thence  we  marched  to 
Concord.  On  a  hill  near  the  entrance  of  the  town  we 
saw   another  body  of  the   provincials   assembled.       Six 

18 


companies  of  light  infantry  were  ordered  down  to  take 
possession  of  the  bridge,  which  the  provincials  retreated 
over.  The  company  I  commanded  was  one.  Three 
companies  of  the  above  detachment  went  forward  about 
two  miles.  In  the  meantime  the  provincial  troops 
returned  to  the  number  of  about  three  or  four  hundred. 
We  drew  up  on  the  Concord  side  of  the  bridge.  The 
provincials  came  down  upon  us,  upon  which  we  engaged 
and  gave  the  first  fire.  This  was  the  first  engagement 
after  the  one  at  Lexington.  A  continued  fire  from  both 
parties  lasted  through  the  whole  day.  I,  myself,  was 
wounded  at  the  attack  of  the  bridge,  and  am  now  treated 
with  the  greatest  humanity  and  taken  all  possible  care  of 
by  the  provincials  at  Medford. 

(Signed)  Edward  Thoroton  Gould." 

It  will  be  seen,  in  all  Home's  contention,  that  upon  this 
statement  of  the  battle  of  Lexington,  by  a  British  officer, 
that  it  appears  that  the  British  were  the  aggressors ;  that 
they  fired  upon  the  people  without  any  justifiable  provoca- 
tion, and  what  the  British  troops  did,  therefore,  in  killing, 
was,  in  fact,  murder.  In  this  connection  it  may  be  stated, 
as  a  justification  of  this  view,  to  some  extent,  that  not  only 
had  the  press  of  America  declared  it  to  be  murder,  but 
some  of  the  London  papers  were  saying  so,  so  that  if 
Home  fell  into  a  legal  error  in  thus  characterizing  the  bat- 
tle, he  had  considerable  authority  for  his  view.  Home  says 
that  he  bases  his  action  upon  principle ;  he  says  he  has  ac- 
cused the  Government  "  because  I  thought  it  my  duty ;  my 
motive  has  been  constantly  the  same ;  I  know  no  America. " 
He  quotes  Solon  as  saying,  when  asked  which  was  the  best 
government,  "  Where  those  who  are  not  personally  injured 
resent  and  pursue  the  injury  or  violence  done  to  another 
as  he  would  if  done  to  himself.  That,"  said  Home,  "was 
the  best  kind  of  government,  and  Solon  had  a  law  passed 
empowering  men  to  do  so.  By  our  laws,  the  whole  of  the 
neighborhood  is  answerable  for  the  conduct  of  each.  Our 
laws  make  it  each  man's  duty  and  interest  to  watch  over 
the  conduct  of  all.  This  principle  and  motive  has  been 
represented  in  me  as  malice.  It  is  the  only  malice  they 
will  ever  find  about  me.  They  have,  in  no  part  of  my  life, 
found   me   in    any   court    of   justice    upon    any   personal 

19 


contest  or  motive  whatever,  either  for  interest,  or  profit,  or 
injury."  Home  then  denied  that  he  had  charged  the 
King's  troops  with  murder.  The  point  was  that  he  had 
intended  to  so  charge  the  King's  government. 

Referring  to  Lexington,  Franklin  also  speaks  of 
"murder"  in  a  letter  to  his  friend,  Wm.  Strahan,  dated 
at  Philadelphia,  July  5th,  1775,  saying:  "You  are  a  mem- 
ber of  Parliament,  and  one  of  that  majority  which  has 
doomed  my  country  to  destruction.  You  begun  to  burn 
our  towns  and  murder  our  people.  Look  upon  your  hands ; 
they  are  stained  with  the  blood  of  your  relatives.  You 
and  I  were  long  friends ;  you  are  now  my  enemy,  and  I  am 
yours. ' '  On  the  question  of  ' '  murder, "  Home  continues : 
"And  now,  gentlemen,  picture  to  yourself  the  Americans 
of  Lexington  and  Concord,  sleeping  quietly  in  their  beds, 
their  wives  and  their  infants  by  their  sides,  roused  at  the 
dead  of  night  with  an  alarm  that  a  numerous  body  of  the 
King's  troops  (their  numbers,  perhaps,  augmented  by 
fear  and  report),  were  marching  toward  them,  by  surprise, 
in  a  hostile  manner.  These  troops,  who  might  not  be 
brought  to  justice  by  them  for  any  murders  which  they 
might  commit.  What  shall  they  do  ?  Shall  they  take  to 
flight,  and  leave  the  helpless  part  of  their  family  behind 
them,  or  shall  they  stay  and  submit  themselves  and  their 
families  to  the  licentiousness  of  these  ruffians?  I  suppose 
there  might  be  among  them  (as  among  us)  some  of  both 
these  sorts ;  it  is,  however,  for  the  honor  of  human  nature, 
that  there  were  also  some  of  another  temper,  and  they 
hastily  armed  themselves  as  well  as  they  could.  There 
is  nothing  surely  in  this  that  will  justify  the  slaughter  of 
them  which  ensued.  You  will  please  to  observe  the  time 
when  this  happened,  for  it  is  a  very  striking  fact.  As 
soon  as  the  Act  of  Parliament,  exempting  them  from  the 
trial  for  murder  in  America,  got  to  America,  and  the 
weather  would  permit  them,  the  troops  did  instantly,  with- 
out delay,  do  these  murders  with  which  I  now  charge 
them.  That  Act  of  Parliament  was  proposed  by  the  confi- 
dential friend  of  my  judge,  Lord  George  Germaine,  and 
the  Attorney  and  Solicitor-General  were  instructed  to  bring 
in  the  Bill  he  proposed  in  the  Committee.  The  General 
of  the  army  was  at  that  time  the  Civil  Governor  of  the 
town. "     Home  said  that  the  charge  that  the  King's  troops 


committed  murder  was  published  in  the  London  news- 
papers of  May  30th  and  31st,  1775,  and  he  believed  it  to 
be  true.  The  charge  was  supported  by  affidavits  taken 
on  the  spot  and  lodged  with  the  Lord  Mayor  of  London, 
and  signed  by  Mr.  Arthur  Lee.  I  have  read  enough,  per- 
haps, to  indicate  the  tone  and  general  idea  of  Home's  de- 
fence. As  Home  had  apparently  concluded,  the  Attorney- 
General  began  to  address  the  jury  in  reply,  when  Home 
rose  and  addressed  Lord  Mansfield,  saying  that  he  was 
ashamed  to  say  that  he  had  forgotten  to  examine  some 
witnesses,  but  hoped  the  Attorney-General  would  consent 
that  he  might  now  do  so.  The  Attorney-General  replying 
that  he  should  "object,  except  he  should  open  to  what 
points  he  meant  to  call  them."  Lord  Mansfield  replied: 
"You  had  better  not  object,  Mr.  Attorney-General,  you 
had  better  hear  his  witnesses."  And  it  was  so  ordered. 
"Call  your  witnesses,"  said  the  Court.  "I  call  the 
Attorney-General,"  said  Home.  "Oh,  you  cannot  examine 
the  Attorney-General,"  said  Mansfield.  "Does  your 
Lordship  so  deliver  that  as  the  law  ?  My  Lord,  I  call 
the  Attorney-General  and  desire  that  the  book  may  be 
given  to  him."  An  extended  colloquy  went  on,  and  Lord 
Mansfield  ruled  that  he  could  not  force  the  Attorney- 
General  to  be  examined.  Then  Home  called  Lord  George 
Germaine,  and  it  was  said  that  he  had  gone  to  Germany. 
"  Yes,"  said  Home,  "  he  has  gone  to  Germany,  too,  I  sup- 
pose, with  General  Gage."  Then  Mr.  Alderman  Oliver 
was  called  and  sworn  as  a  witness.  His  testimony  related 
to  what  took  place  in  the  Constitutional  Society,  as  to 
raising  the  100  pounds  and  publishing  the  advertisement. 
Sir  Theodore  Stephen  Jannsen,  a  subscriber  to  the  fund, 
was  called,  and  proved  nothing  but  what  Home  had 
already  admitted  to  be  true.  A  Mr.  Wm.  Lacey  was  called, 
who  proved  that  the  100  pounds  was  duly  paid  over  to  be 
used  by  Dr.  Franklin,  and  the  receipt  of  the  bankers  was 
produced. 

Mr.  Edward  Thoroton  Gould  was  sworn,  and  he  gave 
some  account  of  the  battle,  the  substance  of  which  is  em- 
bodied in  his  report.  One  curious  question  is  asked  of 
Gould.  "  Pray,  do  you  know  that  the  Americans,  upon 
that  occasion,  scalped  any  of  our  troops  ?  "  Answer:  "  I 
heard  they  did  it ;  I  did  not  see  them. "     Question :  ■ '  From 


21 


whom  did  you  hear  it  ?  "  Answer:  "  From  a  Captain  that 
advanced  up  the  country."  Home  asked  Officer  Gould: 
"  Did  you  know,  had  you  any  intelligence  that  the  Ameri- 
cans of  Lexington  and  Concord  were  at  that  time  march- 
ing, or  intending  to  march,  to  attack  you  at  Boston  ? * 
Answer:  "We  supposed  that  they  were  marching  to 
attack  us  from  continued  firing  of  alarm  guns,  cannon,  as 
they  appeared  to  be  such  from  the  reports."  Lord  Mans- 
field: "Cannon?  "  Answer:  "Cannon."  Question:  "When 
was  that  ? "  Answer:  "  As  soon  as  we  begun  the  march, 
early  in  the  morning."  In  charging  the  jury,  Lord  Mans- 
field emphasized  the  fact,  that  "cannon"  were  used  by 
the  provincials,  thus  confirming  the  idea  of  intended  war 
and  justification  of  the  British  shooting,  which  view  did 
not  please  Home.  After  some  further  questions  to  Officer 
Gould,  Home  announced  that  he  was  through,  and  rested 
his  case.  Then  came  the  address  of  the  Attorney-General 
to  the  jury,  fiercely  urging  a  conviction.  What  the 
Attorney-General's  contention  was,  need  not  be  related  at 
length.  It  is  obvious  that  it  would  be,  as  it  was,  an  able, 
eloquent,  and  earnest  assault  upon  Mr.  Home,  for  libelling 
the  King  and  the  Government,  in  proposing  that  the  fund 
should  be  applied  to  the  relief  of  the  widows,  orphans,  and 
aged  parents  of  "our  beloved  American  fellow-subjects," 
who,  faithful  to  the  character  of  Englishmen,  preferring 
death  to  slavery,  were,  for  that  reason  only,  inhumanly 
murdered  by  the  King's  troops,  at  or  near  Lexington  and 
Concord,  in  the  Province  of  Massachusetts.  The  Attorney- 
General  exclaims:  "What  does  that  evidence  amount  to  ? 
Why,  that  the  King's  troops,  under  the  command  of  General 
Gage,  were  in  a  hostile  country,  and  that  it  was  impos- 
sible for  them  to  go  upon  any  Service,  ordered  by  their 
general  and  conducted  by  his  officers,  without  an  attack ; 
that  the  moment  they  went  out  of  Boston  alarm  guns  were 
discharged,  in  order  to  rouse  the  power  that  possessed 
the  country,  and  to  make  the  attack  upon  them,  and  this 
is  the  medium  by  which  it  is  to  be  proved,  that  the  soldiers 
who  were  ordered  by  their  commander  to  advance  from 
their  post  at  Boston  into  that  country,  were  guilty  of  mur- 
der, because  they  were  surrounded,  upon  the  18th  and 
19th  of  April,  in  consequence  of  those  alarm  guns,  with  an 
armed  force  on  the  other  side,  in  order  to  withstand  and 


22 


oppose  their  operations,  they  being  at  that  time  in  a  hos- 
tile country.  Why,  if  I  had  meant,  if  I  had  thought  it 
consistent  with  law  or  with  reason,  to  enter  into  a  dis- 
cussion of  that  question  with  him,  whether  he  is  a  libeller 
or  not,  for  having  charged  them  with  murder,  by  a  printed 
paper,  instead  of  charging  them  in  a  more  direct  way ;  if 
I  had  thought  it  necessary  to  establish  the  case  against 
him  in  the  strongest  and  most  precise  manner,  it  would 
have  been  by  calling  just  such  a  witness  as  that,  in  order 
to  prove  that  the  troops  were  themselves  attacked,  and 
that  upon  the  moment  of  their  going  out  of  the  place,  they 
were  surrounded  by  hostile  people.  But,  *  necessity,'  it 
seems — necessity,  according  to  Home's  notion  of  the  law — 
is  that  which  his  defense  prescribes;  that  a  man  must  go 
to  the  wall  who  is  attacked;  he  must  fly  first,  and,  if  he 
can  escape  by  flight,  then  he  shall  not  justify  himself  by 
turning  and  repelling  the  attack.  That  the  King's  troops, 
when  they  heard  the  alarm  guns  and  were  attacked,  were 
to  fly,  to  get  to  the  wall  and  drop  their  arms.  This  is  the 
notion  of  military  disposition  in  a  hostile  country,  and  this 
is  the  law  that  the  learned  gentleman  has  learned  from  the 
state  trials,  the  source  of  his  reading,  and  which  he  has 
set  forth  with  a  dexterity  and  a  species  of  understanding 
which  is  peculiar  to  him. " 

Again,  the  Attorney-General  says  "that  no  one  doubts 
but  that  the  intention  constitutes  the  criminality  of  every 
charge  of  every  denomination  and  kind ;  but  the  extreme 
ridicule  of  the  thing  is  in  his  talking  of  that  doctrine 
upon  an  information  like  this.  See  what  it  is  :  The 
words  are,  'that  the  American  subjects,  for  meritorious 
considerations  upon  their  part,  and  for  those  consider- 
ations only,  were  inhumanly  murdered  at  Lexington 
and  Concord,  in  the  province  of  Massachusetts  Bay.* 
Nobody  can  doubt  in  the  world,  but  that  imputing 
inhuman  murder  to  the  attack  of  those  troops  is  abuse. 
I  suppose  he  did  not  mean  it  as  flattery,  to  extol  them,  to 
deliver  them  down  to  posterity  (if  such  paragraphs  as 
these  have  any  chance  of  reaching  down  to  posterity)  in 
terms  of  heroism.  He  meant  to  abuse.  The  words 
themselves  are  abuse,  and  then,  I  say,  when  words  of 
direct,  unqualified,  indubitable  abuse  are  printed  concern- 
ing any  man  alive,   the  very  circumstances  of  printing 

23 


calumny  concerning  a  man,  carries  along  with  it  an 
intention  to  abuse  him.  Wiry,  it  is  nonsense  to  doubt  it. 
One  may  spin  words  till  one  loses  the  meaning  of  a  sen- 
tence and  the  first  words  that  are  used  in  the  sentence, 
but  it  is  nonsense  to  deny  when  you  use  direct  abuse ; 
when  you  revile  them  in  the  very  attempt  to  justify  the 
charge  and  again  use  terms  of  abuse,  that  those  terms  of 
abuse  do  not  prove  intention  of  abuse;  prima  facie  at 
least  they  will." 

And  so  the  Attorney's  address  went  on,  based,  of 
course,  upon  the  assumption  that  the  people  of  America 
were  vile  rebels  who  were  taking  up  arms  against  the 
British  Government  without  just  cause,  and  that  it  was 
a  terrible  offence  for  the  defendant  to  commit,  to  uphold 
these  men  after  they  began  to  perpetrate  their  offences 
of  disorder  and  open  rebellion,  as  they  did  from  the 
British  standpoint  at  Lexington  and  Concord.  Finding 
Home  a  man  of  considerable  attainments,  and  not  a  little 
influence,  using  the  press  in  favor  of  the  provincials,  and 
raising  money  to  support  their  widows  and  orphans  and 
aged  parents,  and  accusing  the  Government  and  the  King's 
troops  of  murder  in  the  battle  of  Lexington,  there  was 
nothing  left,  said  the  Attorney-General,  to  do,  but  to 
bring  on  this  prosecution  that  such  an  offence  as  Home's 
might  be  duly  punished. 

When  Lord  Mansfield  came  to  charge  the  jury,  he  said 
the  question  was:  "Did  Home  compose  and  publish — 
that  is,  was  he  the  author  and  publisher  of  it  ? "  As  to 
that,  he  said,  there  can  be  no  question,  as  the  proof  was 
clear,  and  Home  did  not  deny  it.  He  then  said:  "  there 
remains  nothing  more  but  that  which  reading  the  paper 
must  enable  you  to  form  an  opinion  on,  superior  to  all 
arguments  in  the  world,  andthis  is  the  sense  of  the  paper, 
that  arraignment  of  the  Government  and  the  employment 
of  the  troops  upon  the  occasion  of  Lexington  mentioned 
in  that  paper.  Read  it.  You  will  form  the  conclusion 
yourselves.  What  is  it  ?  Why  it  is  this :  that  our  beloved 
American  fellow-subjects  (therefore  innocent  men)  in 
rebellion  against  the  State — they  are  our  fellow-subjects — 
but  not  so  absolutely  beloved  without  exception.  Beloved 
to  many  purposes ;  beloved  to  be  reclaimed ;  beloved  to  be 
forgiven ;   beloved  to  have  good  done  to  them,   but  not 

24 


beloved  so  as  to  be  abetted  in  their  rebellion.  And  there- 
fore that  certainly  conveys  the  idea  that  they  are  innocent. 
But,  further,  it  says  that  they  were  inhumanly  murdered 
at  Lexington  by  the  King's  troops,  merely  on  account  of 
their  acting  like  Englishmen  and  preferring  liberty  to 
slavery. " 

Again,  he  says:  "The  unhappy  resistance  of  the  legis- 
lative authority  of  this  kingdom  by  many  of  our  fellow- 
subjects  in  America,  is  too  calamitous  an  event  not  to  be 
impressed  upon  all  your  minds ;  all  the  steps  leading  to  it 
are  of  the  most  universal  notoriety.  The  legislature  of 
this  kingdom  have  avowed  that  the  Americans  rebelled 
because  they  wanted  to  shake  off  the  sovereignty  of  this 
kingdom.  They  profess  only  to  bring  them  back  to  be 
subjects,  and  to  quell  rebellion.  Troops  are  employed, 
money  is  expended  upon  this  ground  ;  that  the  case  is 
here  between  a  just  government  and  rebellious  subjects, 
for  a  just  and  good  purpose,  for  the  benefit  of  the  whole. 
If  I  do  not  mistake,  the  first  hostilities  that  were  com- 
mitted, (though  many  steps  leading  to  them  existed 
before),  were  those  upon  the  19th  of  April,  1775.  If  some 
soldiers,  without  authority,  had  got  into  a  drunken  fray, 
and  murder  had  ensued,  and  this  paper  could  relate  to  that, 
it  would  be  quite  a  different  thing  from  the  charge  in  the 
information,  because  it  is  charged  as  a  seditious  libel, 
tending  to  disquiet  the  minds  of  the  people.  Now,  what 
evidence  has  Mr.  Gould  given  ? " 

The  judge  then  repeated  Officer  Gould's  statement. 
In  considering  this  libel,  the  judge  told  the  jury  that  they 
must  judge  whether  it  contains  a  harmless,  innocent 
proposition  for  the  good  and  welfare  of  this  kingdom,  the 
support  of  the  legislative  government,  and  the  King's 
authority  according  to  law,  or,  whether  it  is  not  denying 
the  Government  and  legislative  authority  of  England,  and 
justifying  the  Americans,  averring  that  they  are  totally 
innocent,  and  that  they  only  desire  not  to  be  slaves ;  not 
disputing  to  be  subjects,  but  that  they  desire  only  not  to  be 
slaves,  and  that  the  use  that  is  made  of  the  King's  troops 
upon  this  occasion  was  to  reduce  them  to  slavery.  And 
if  it  was  intended  to  convey  that  meaning,  there  can  be 
little  doubt  whether  that  is  an  arraingment  of  the  Govern- 
ment and  of  the  troops  employed  by  them  or  not.     But 

25 


that  is  a  matter  for  your  judgment.  You  will  judge  of 
the  meaning  of  it.  You  will  judge  of  the  subject  to  which 
it  applied  and  connect  them  together,  and,  if  it  is  a  criminal 
arraignment  of  these  troops  acting  under  the  orders  of  the 
officers  employed  by  the  Government  of  this  country  to 
charge  them  with  murder  of  innocent  subjects,  because 
they  would  not  be  slaves,  you  will  find  your  verdict  but 
one  way  ;  but,  if  you  are  of  the  opinion  that  the  contest 
is  to  reduce  innocent  subjects  to  slavery,  and  that  they 
were  all  murdered  (like  the  cases  of  the  noted  murders  of 
Glencoe,  and  twenty  other  massacres  that  might  be 
named),  why,  then  you  will  form  a  different  conclusion, 
with  regard  to  the  meaning  and  application  of  this  paper. 
I  pass  over  a  great  deal  that  was  said,  because  it  ought 
not  to  have  been  said." 

The  jury  withdrew  about  five  o'clock,  and  returned 
into  court  about  half  an  hour  after  six;  and  gave  in  their 
verdict  that  the  defendant  was  guilty.  The  court  was 
then  adjourned  to  Wednesday,  November  19th,  1777, 
when  the  Attorney-General  moved  for  judgment  against 
Mr.  Home.  The  information  was  then  read  by  order  of 
the  court.  Mr.  Home  then  made  an  extended  argument 
for  arrest  of  judgment,  in  which  he  repeated  much  that 
he  had  said  to  the  jury.  The  Attorney-General  then 
made  a  vigorous  reply  and  Home  answered  him.  Among 
other  things,  Home  claimed  that  there  was  not  sufficient 
averment  in  the  information  that  there  was  a  rebellion  in 
Massachusetts  Bay,  and  that  certain  persons  were  em- 
ployed to  quell  that  rebellion.  If  the  information  had 
averred  it,  it  would  have  been  necessary  to  prove  it,  and 
it  could  not  have  been  proved  as  an  existing  fact  on  the 
19th  day  of  April,  1775.  Home  went  into  a  critical  dis- 
cussion of  his  proposition,  which  seemed  to  trouble  Lord 
Mansfield  considerably.  Finally,  Lord  Mansfield  said  : 
"Mr.  Attorney-General,  have  )'ou  anything  to  say?" 
The  Attorney-General  said:  "  It  belongs  to  the  defendant, 
I  apprehend,  to  state  what  he  can  in  his  extenuation." 
Then  Mr.  Home  said:  "I  shall  state  nothing  in  extenua- 
tion until  your  Lordship's  decision  has  told  me  that  there 
was  a  crime.  I  do  not  know  where  the  crime  lies  at 
present.  My  objection  goes  that  there  is  no  crime  averred 
in  the  information.     It  is  impossible  for  me  to  extenuate 

26 


that  which  I  do  not  acknowledge."  Lord  Mansfield: 
"Have  you  any  affidavits  of  the  circumstances,  or  any- 
thing?" Mr.  Home:  "None  in  the  world."  Lord 
Mansfield:  "Let  him  be  committed/'  Mr.  Home:  "Will 
your  Lordship  commit  me  before  it  appears  whether  I  am 
even  accused  of  any  crime?"  Lord  Mansfield:  t4No. 
Then  you  may  come  up  on  Monday.  You  came  volun- 
tarily now?"  Mr.  Home:  "I  did."  Lord  Mansfield: 
"Then  come  up  voluntarily  again.  If  you  should  find 
any  precedents  on  either  side,  I  wish  you  would  give 
them  to  us."  This  was  repeated  to  both  the  Attorney- 
General  and  Home  two  or  three  times.  Home  replied 
that  he  was  not  himself  very  likely  to  produce  precedents. 

When  the  court  again  convened  on  November  24th, 
1777,  Lord  Mansfield  read  an  elaborate  opinion  on  the 
point  raised  by  Home  as  to  the  sufficiency  of  the  informa- 
tion. The  decision  was  that  the  information  was  sufficient. 
Perhaps  Home,  upon  hearing  the  judge's  decision,  felt  as 
did  the  late  Hon.  Joseph  Payne,  of  the  Boston  bar,  who, 
when  learnedly  arguing  a  law  question  before  a  Supreme 
Court  judge  in  Boston,  was  interrupted  by  the  judge, 
who  said:  "Mr.  Payne,  that  is  not  law."  "I  know  it," 
said  Payne,  "but  it  was  before  your  Honor  spoke."  I  am 
inclined  to  believe  that  our  Bar  and  our  Courts  would  be 
of  the  opinion  that  the  missing  averment  was  essential, 
and  that  Home  was  right. 

In  deciding  the  motion  for  arrest  of  judgment,  Lord 
Mansfield  read  Captain  Gould's  report  of  the  battle,  and 
said  : 

"  Defendant  alleges  that  the  charge,  as  it  stands  upon 
the  record,  is  insufficient  in  law  to  support  any  judgment; 
that  there  was  no  averment  as  to  the  state  of  the  Massa- 
chusetts Colony  at  that  time ;  either  that  there  were  riots, 
insurrections,  or  rebellion ;  that  there  were  no  averments 
that  the  King  had  sent  any  troops ;  that  there  was  no 
averment  that  there  was  any  skirmish  or  engagement,  or 
how  it  began,  or  how  it  went  on,  or  ended ;  and  that  it 
was  not  averred  that  the  employment  of  the  troops  was 
by  the  King's  authority.  The  only  objection  that  had 
color  in  it  was,  what  I  mentioned  last,  that  the  employ- 
ment of  the  troops  was  not  averred  to  be  by  the  King's 
authority.     I  thought  then,  and  said,  that  the  averment 

27 


of  the  words  being  written  'of  and  concerning  the 
King's  Government '  was  an  answer,  but  no  precedent 
was  cited  or  alluded  to  on  either  side.  I  fancy  the 
Attorney-General  was  surprised  with  the  objection.  But 
there  was  no  precedent,  and  I  could  not  say  upon  my 
memory  whether  precedents  might  not  require  some 
technical  form  of  expression  as  to  that  medium  through 
which  words  are  averred  to  be  written  of  the  King's 
Government.  And  if  any  flaw  had  happened,  technically 
or  verbally,  that  were  not  at  all  founded  in  the  sense  or 
reason  of  the  thing,  I  should,  in  this  case,  be  of  the  same 
opinion  that  I  was  in  the  case  of  an  outlawry,  that  the 
defendant  ought  to  have  the  benefit  of  it.  And  therefore, 
I  desired  that  we  might  think  of  it  for  some  time,  that 
precedents  might  be  searched,  and  the  books  looked  into. 
We  have  fully  considered  of  it,  and  the  precedents 
have  been  looked  into,  and  we  have  fully  considered  the 
information  and  all  the  objections  that  were  mentioned, 
and  all  the  objections  that  we  could  think  of;  and  we  are 
all  clearly  of  opinion,  without  any  doubt,  that  the 
information  is  sufficient.  An  indictment  or  information 
must  charge  what,  in  law,  constitutes  the  crime,  with 
such  certainty  as  must  be  proved,  but  that  certainty  may 
arise  from  necessary  inference,  in  the  manner  settled  in 
the  case  of  the  King  and  Lawley,  in  Strange.  Plain 
words  in  a  libel  speak  for  themselves.  If  they  are  doubt- 
ful, their  meaning  must  be  ascertained  by  an  inuendo. 
Here  the  words  are  plain,  they  want  no  inuendo.  They 
are  averred  to  be  written  '  of  and  concerning  the  King's 
Government  and  the  employment  of  his  troops.'  The 
obvious  meaning  is,  that  the  employment  of  the  King's 
troops  must  be  under  his  authority,  and  it  necessarily  is 
so,  if  the  words  relate  to  and  are  written  of  and  concern- 
ing the  King's  Government.  This  must  now  be  taken  to 
be  true,  because  the  verdict  finds  it.  Had  the  question 
arisen  upon  a  demurrer,  it  must  equally  have  been  taken 
to  be  true.  The  gist  of  every  charge  of  every  libel  con- 
sists in  the  person  or  matter  of  and  concerning  whom  or 
which  the  words  are  averred  to  be  said  or  written.  In 
the  King  against  Alderton  the  information  was  held  bad, 
because  it  was  not  laid  in  the  information;  it  was  not  laid 
that  the  libel  was  of  or  concerning  the  justices  of  Suffolk. 

28 


Where  the  words  are  averred  to  be  written  of  the  King's 
Government,  (there  are  several  precedents),  or  of  the 
government  of  the  kingdom,  or  of  the  government, 
suppose,  of  the  navy,  as  to  anything  further  as  to  which 
they  are  also  written  through  the  medium  of  which  they 
calumniate  the  King's  Government,  there  is  no  form  of 
expression  technically  necessary.  And  it  cannot  be, 
because  there  may  be  cases  where  the  King's  Govern- 
ment might  be  calumniated  through  an  imputation  upon 
the  gross  licentiousness  of  the  King's  troops.  The  ques- 
tion to  be  tried  is,  whether  the  words  laid  are  written  of 
the  King's  Government.  It  may  vary  the  degree  of 
mischief,  guilt  or  malice,  but  it  is  immaterial  as  to  the 
constitution  of  the  crime  upon  the  record,  whether  the 
words  refer  to  something  that  has  existed  or  are  an  entire 
fiction.  Had  Lexington  been  left  out,  or  had  any  other 
place  been  mentioned,  where  there  had  been  no  skirmishes 
or  engagement,  instead  of  Lexington,  it  would,  without 
any  inuendo,  have  been  equally  a  libel.  It  is  the  duty  of 
the  jury  to  construe  plain  words  and  clear  allusions  to 
matters  of  universal  notoriety,  according  to  their  obvious 
meaning,  and  as  everybody  else  who  reads  must  under- 
stand them.  But  the  defendant  may  give  evidence  to 
show  that,  in  the  case  in  question,  they  were  used  in  a 
different  or  in  a  qualified  sense.  If  no  such  evidence  is 
given,  the  obvious  meaning  to  every  man's  understanding 
must  be  decisive.  Before  this  trial  five  several  juries  had 
found  those  words,  from  their  necessary  meaning,  to  be 
of  and  concerning  the  King's  Government.  Here,  in  this 
case,  the  defendant  gave  evidence,  and  the  evidence  he 
gave  demonstrated  that  the  words  related  to  troops  acting 
uyider  the  King's  authority,  and  consequently  related  to  the 
King's  Government.  And  I  am  more  confirmed  that 
upon  this  occasion  there  is  little  color  of  doubt  of  any  flaw 
in  the  information,  that  in  those  five  trials  that  I  allude  to, 
in  one  or  other  of  them,  a  great  variety  of  counsel  of  learn- 
ing, eminence  and  ability  were  employed.  They  were  called 
upon  to  pry,  with  all  the  sharpness  that  they  had,  into  the 
information,  to  put  holes  in  it ;  there  were  three  judgments 
given  upon  conviction  upon  them,  and  no  counsel  saw  or 
imagined  there  was  any  flaw  in  it.  Therefore  we  are  all 
satisfied  that  the  information  is  sufficient. " 

29 


The    Attorney-General    then    addressed    the    Court, 
saying,   among    other   things,  that    Home   had   charged 
that  the  national  force  of  this  country  has  been  employed 
in  the  murder  of  the  King's  subjects,  for  as  meritorious 
an  attribute  as  may  be  imputed  to  man,  and  he  has  speci- 
fied the  time  and  place  at  which  that  was  done.     He  then 
proceeded  to  characterize  the  libel  in  very  severe  terms. 
The   Attorney-General   said   he    believed   it    would    be 
"  totally  impossible  for  the  imagination  of  any  man,  how- 
ever shrewd,  to  state  a  libel  more  scandalous  and  base 
than  in  the  fact  imputed;  more  malignant  and  hostile  to 
the  country  in  which  the  libeller  was  born ;  more  danger- 
ous in  example,  if  it   was  suffered  to   pass  unpunished, 
than   this  which    I   have    now   stated  to  your  Lordship. 
It    was   impossible,"    he     said,      "by   any    epithets     to 
aggravate  it. "     He  then  reflected  upon  the  conduct  of 
the  defendant,  in  seeming  to  glorify  himself  for  his  con- 
duct, as  if  adding  crime  to  crime,  and  showed  himself  to 
be  defiant  of  justice.     The  Attorney-General  then  referred 
to  his  duty  to  submit  to  the  Court  his  views,  as  to  what 
the  punishment  should  be.   He  said  that '  'the  punishments 
to  be  inflicted  for  misdemeanors  of  this  sort  have  usually 
been    of    three  different  kinds  :     fine,  corporal  punish- 
ment by  imprisonment,  and  infamy,  by  the  judgment  of 
the  pillory.     With  regard  to  the  fine,  it  is  impossible  for 
justice   to  make   this   sort  of  punishment,  however  the 
infamy  will,  always  fall  upon  the  offender ;  because  it  is 
well  known  that  men  who  have  more  wealth,  who  have 
better  and  more  respectful  situations  and  reputations  to 
be   watched  over,   employ  men  in  desperate  situations, 
both  of  circumstances  and  character,  in  order  to  do  that 
which  serves  their  party  purposes;  and  when  the  punish- 
ment comes  to  be  inflicted,  this  Court  must  have  regard 
to  the  apparent  situation  and  the  circumstances  of  the 
man  employed ;  that  is,  of  the  man  convicted,  with  regard 
to  the  punishment.      With  regard  to  imprisonment,  that 
is  a  species  of  punishment  not  to  be  considered  alike  in 
all  cases,  but   varies   with   the   person  who  is  to  be  the 
object  of  it,  and  so  varies  with  the  person  that  it  would 
be  proper  for  the  judgment  of  the  court  to  state  circum- 
stances which  will  make  the  imprisonment  fall  lighter  or 
heavier,  as  the  truth  is  upon  the  person  presented  to  the 

jo 


Court.  The  defendant  has  asserted  that  imprisonment 
was  no  kind  of  inconvenience  to  him ;  that  it  was  a  mere 
matter  of  circumstances  whether  it  happened  in  one  place 
or  another,  and  that  the  longest  imprisonment  which  this 
Court  could  inflict  for  punishment  was  not  beyond  the 
reach  of  accommodation.  In  this  respect,  therefore, 
imprisonment  is  not  only,  as  with  respect  to  the  person, 
not  an  adequate  punishment  to  the  offence,  but,  the 
public  are  told,  and  told  by  a  pamphlet  which  bears  the 
reverend  gentleman's  name,  (may  be  his  name  may  have 
been  forged  to  it),  that  it  would  be  no  punishment.  I 
stated,  in  the  third  place,  to  your  Lordship,  the  pillor)^ 
to  have  been  the  usual  punishment  for  this  species  of 
offence." 

The  Attorney-General  then  went  on  to  urge  that  the 
defendant  should  be  punished  by  the  judgment  of  the 
pillory. 

Mr.  Home  again  addressed  the  Court,  repeating  some 
things  that  he  had  said  before,  and,  among  other  things, 
said :  ■ '  My  Lords,  the  Attorney-General  has  attempted  to 
alarm  me  with  monstrous  fines,  long  imprisonments,  with 
infamous  punishment.  My  Lords,  infamy  is  as  little 
acquainted  with  my  name  as  with  that  of  the  gentleman's, 
or  with  your  Lordships.  I  feel  no  apprehension  from  the 
pillory.  I  do  feel  some  little  pain,  that  a  gentleman,  taking 
advantage,  should  say  and  offer  those  things,  unfounded 
in  the  appearance  even  of  truth  against  me.  which  neither 
he,  nor  any  other  man  like  him,  dare  to  insinuate  in  any 
other  station  but  this.  My  Lords,  I  never  in  my  life 
solicited  a  favor;  I  never  desired  to  meet  with  compas- 
sion." He  further  said:  "My  Lords,  Mr.  Attorney- 
General  has  said  that  I  represented  imprisonment  as  no 
kind  of  inconvenience.  As  no  kind  of  inconvenience,  my 
Lords,  will  not  certainly  be  true,  because  the  great  luxury 
of  my  life  is  a  very  small,  but  a  very  clean,  cottage ;  and, 
though  imprisonment  will  be  so  far  inconvenient  to  me, 
the  cause  of  it  will  make  it  not  painful."  Again,  he  says: 
"My  Lords,  Mr.  Attorney-General  has  done  what  I  had 
before  heard  attempted  to  be  done,  with  very  great 
sorrow;  he  has  attempted  to  re-instate  the  Star  Chamber. 
The  fault  he  finds  with  it  is  only  its  rankness — before  the 
prosecutions   grew   so   rank   in   the   Star   Chamber  (and 

3i 


which  rankness  caused  it  to  be  abolished).  I  do  not 
recollect  the  words  of  that  act  by  which  it  was  abolished, 
but,  I  am  sure  that  its  rankness  alone  is  not  the  reason 
given.  If  that  gentleman  would  lend  me  his  memory,  I 
should  then  repeat  that  none  of  the  powers,  nor  none  like 
them  (your  Lordships  will  know  better  the  words)  ever 
to  be  put  in  use  again  in  that  or  any  other  court."  He 
closed  by  saying:  "  There  are  many  other  things  which  I 
might  say  to  your  Lordships;  but,  as  I  trust,  and  fully 
trust,  that  I  shall  still  find  a  remedy,  my  Lords,  against 
the  present  decision,  I  shall  forbear  saying  one  syllable 
in  extenuation  of  what  the  Attorney-General  has  been 
pleased  to  charge  me  with,  and  leave  your  Lordships  to 
pronounce  your  judgment,  without  the  least  consideration 
of  me ;  without  the  smallest  desire,  too,  that  you  should 
abate  a  hair  from  what  you  think  necessary  for  the  justice 
of  my  country.  I  shall  leave  it  entirely  to  your  Lordships' 
discretion. " 

Then  Mr.  Justice  Aston,  sitting  with  Lord  Mansfield, 
opened  the  vials  of  his  British  wrath  upon  sentencing 
Home,  as  follows : 

"John  Home,  Clerk,  you  stand  convicted  upon  an 
information  filed  against  you  by  his  Majesty's  Attorney- 
General,  of  writing  and  publishing,  and  causing  to  be 
written  and  published,  a  false,  wicked  and  seditious  libel, 
of  and  concerning  his  Majesty's  Government  and  the 
employment  of  his  troops.  The  record  has  been  openly 
read  in  court  from  the  record;"  and  then,  in  referring  to 
the  terms  of  the  same,  the  Court  said : 

"Upon  that  the  Court  has  now  decided  agreeably  to 
the  finding  of  the  jury,  and  no  man  can  really  mistake 
the  malicious  meaning  and  insinuation  of  it ;  it  is  a  libel 
which  contains  a  most  audacious  insult  upon  his  Majesty's 
administration  and  Government,  and  the  conduct  of  his 
loyal  troops  employed  in  America.  It  treats  those  dis- 
affected and  traitorous  persons  who  have  been  in  arms  in 
open  rebellion  against  his  Majesty,  as  faithful  subjects; 
faithful  to  the  character  of  Englishmen,  and  it  falsely  and 
seditiously  asserts  that  for  that  reason  only,  they  were 
inhumanly  murdered  by  his  Majesty's  troops  at  Lexington 
and  Concord.  By  this  same  libel,  subscriptions,  too,  are 
proposed   and  promoted   for  the   families  of  those  very 

32 


rebels  who  fell  in  that  cause,  traitorously  fighting  against 
the  troops  of  their  lawful  sovereign.  This  is  the  light  in 
which  this  libel  must  appear  to  every  man  of  sound  and 
impartial  understanding ;  this  is  the  plain  and  unartificial 
sense  of  it ;  the  contents  of  this  libel  have  been  too  effect- 
ually scattered  and  dispersed  by  your  means,  as  charged, 
and  they  have  been  inserted  in  divers  and  different  news- 
papers ;  the  contents  are  too  well  known — I  trust,  abhorred 
— to  need  any  repetition  from  me  for  the  sake  of  observing 
further  upon  their  malice,  sedition  and  falsity.  The 
Court  hath  considered  of  the  punishment  fit  to  be  inflicted 
upon  you  for  this  offence,  and  the  sentence  of  the  Court 
is,  that  you  do  pay  a  fine  to  the  King  of  200  pounds;  that 
you  be  imprisoned  for  the  space  of  twelve  months,  and 
until  that  fine  be  paid,  and  that  upon  the  determination  of 
your  imprisonment,  you  do  find  sureties  for  your  good 
behaviour  for  three  years,  yourself  in  400  pounds,  and  two 
sureties  in  200  pounds  each." 

Mr.  Home  :  "My  Lords,  I  am  not  at  all  aware  of 
what  is  meant  by  finding  sureties  for  good  behaviour  for 
three  years.  It  is  that  part  of  the  sentence  that,  perhaps, 
I  shall  find  the  most  difficulty  to  comply  with,  because  I 
do  not  understand  it.  If  I  am  not  irregular  in  entreating 
your  Lordship  to  explain  it  to  me;  your  Lordship,  I 
suppose,  would  choose  to  have  your  sentences  plainly 
understood,  as  I  know  not  the  nature  of  this  suretyship. " 

Lord  Mansfield  said:  "It  is  a  common  addition." 
Mr.  Home  said:  "And  it  may  be  a  common  hardship. " 
Mr.  Justice  Aston:  M  Not  to  repeat  offences  of  this  sort." 
Lord  Mansfield:  "Any  misdemeanor."  Mr.  Justice 
Aston:  "  Whatever  shall  be  considered  bad  behaviour." 
Mr.  Home:  "If  your  Lordship  will  imprison  me  for 
these  three  years,  I  should  be  safer,  because  I  cannot 
foresee  but  that  the  most  meritorious  action  of  my  life 
may  be  considered  to  be  of  the  same  sort."  Lord  Mans- 
field: "You  must  be  tried  by  a  jury  of  your  country  and 
be  convicted.  You  know  it  is  a  most  constant  addition. 
You  know  that,  yourself,  very  well.  Where  are  the 
tipstaves  ? "  (Which,  in  modern  phrase,  would  mean : 
"Officers,  take  the  prisoner  in  charge."). 

Dr.  Johnson,  inquiring  about  it,  said:  "  I  hope  they  did 
not  put  the  dog  in  the  pillory ;  he  has  too  much  literature 

33 


for  that."  Boswell  says:  "  Johnson  added,  'Were  I  to 
make  a  new  edition  of  my  dictionary,  I  would  adopt 
several  of  Mr.  Home's  etymologies.'  " 

Lord  Campbell,  referring  to  the  sentence,  remarks: 
"Thurlow,  in  a  manner  which  astonishes  a  modern 
Attorney-General,  pressed  that  the  defendant,  who  was  an 
ordained  clergyman  of  the  Church  of  England,  who  was 
a  scholar  and  a  gentleman,  should  be  set  in  the  pillory." 

Thurlow,  by  urging  punishment  in  the  pillory,  showed 
an  unscrupulous  and  brutal  mind. 

In  less  than  a  month  after  Mr.  Home  was  sent  to  jail 
Thurlow  was  made  Lord  Chancellor  of  England,  and  sat 
on  the  woolsack  in  the  House  of  Lords. 

All  this  shows  the  fierce  resentment  aroused  by  the 
supporters  of  the  American  cause  in  England. 

During  his  imprisonment  he  continued  his  favorite 
studies,  and  in  1779  applied  for  admission  to  the  bar,  but 
was  not  received,  because,  as  was  the  rule,  he  had  been  a 
clergyman.  He  continued  active  in  political  discussions 
for  many  years,  being  a  candidate  for  the  Commons  twice, 
and  defeated,  and  again  a  candidate,  and  elected,  in  1801, 
but  the  parliament  decided  not  to  admit  him,  ruling  that 
a  clergyman  could  not  thereafter  sit  in  the  House  of 
Commons. 

As  another  incident  in  his  life  it  may  be  stated,  that 
Home  was  tried  for  high  treason,  mainly  for  his  action  as 
a  member  of  the  Constitutional  Society,  in  expressing 
sympathy  for  the  French  Revolution.  At  this  time  Home 
did  not  ignore  the  maxim  that  "he  who  acts  as  his  own 
lawyer  has  a  fool  for  a  client,"  but  was  most  ably 
defended  by  Gibbs,  and  by  the  brilliant  Lord  Erskine, 
and  acquitted. 

Six  authors  have  written  the  life  of  Home.  Stephens, 
who  wrote  Home's  life  in  1813,  says  of  him,  in  reference 
to  the  trial  for  treason:  "He  conducted  himself  with 
great  firmness  and  courage."  It  was  abundantly  shown 
that  the  charge  of  treason  was  trumped  up  by  police  spies, 
who  tried  to  prove  that  Home  was  in  a  conspiracy  to 
excite  a  similar  revolution  in  England. 

From  what  has  been  stated  it  will  be  seen  what  was 
the  temper  of  the  British  courts  towards  the  American 
Revolution.     Battles  for  the  King  were  fought  in  British 

34 


forums  as  well  as  by  British  troops  in  America.  British 
statesmen  and  courts  could  not  see  nor  believe  that  what 
Chief  Justice  Mansfield  at  the  trial  of  Home  referred  to 
as  " the  occasion  at  Lexington"  portended  the  indepen- 
dence of  the  Colonies.  Samuel  Adams  saw  it,  when  he 
exclaimed:  "Oh!  what  a  glorious  morning  this,  for 
America,"  as  he  heard  the  guns  at  Lexington.  There 
was  a  feeling,  no  doubt,  induced  somewhat  by  many 
assurances  from  America,  that  independence  was  not  the 
object,  but  rather  to  procure  the  repeal  of  obnoxious 
statutes  and  a  more  conciliatory  policy  by  the  home 
government. 

Up  to  a  short  time  before  Lexington,  Franklin  took 
this  ground,  and  as  late  as  the  5th  of  March,  1775,  when 
Dr.  Warren  delivered  the  fifth  annual  oration  on  the 
Boston  Massacre,  in  the  crowded  Old  South  Church,  the 
orator  said  that  he  and  his  friends  ' '  were  not  seeking 
independence.  But,"  he  added,  "there  were  men  in 
that  house  who  were. "  In  this  audience  were  men  of 
various  opinions,  including  British  army  officers,  who 
were  expected  to  hear  and  report.  Also,  in  Parliament, 
when  the  trial  of  Home  and  other  proceedings  were  on 
and  before,  there  was  high  debate,  in  which  Chatham, 
and  Camden,  and  North,  and  Mansfield  were  engaged,  as 
to  what  should  be  the  policy  in  American  affairs.  That 
the  excitement  and  trend  of  public  opinion  reached  the 
court  room  can  not  be  doubted.  The  hope  of  speedily 
crushing  the  Americans,  which  had  animated  Lord  Mans- 
field and  induced  the  nation  warmly  to  support  the  policy 
of  the  Government,  was  cruelly  disappointed.  Every 
fresh  arrival  showed  the  aspect  of  affairs  to  be  more  and 
more  alarming,  and  in  the  course  of  a  few  months  came 
the  stunning  intelligence  that  General  Burgoyne  had 
capitulated  at  Saratoga.  Lord  Campbell  tells  us  that 
when  the  news  of  the  surrender  reached  England  the 
poignancy  of  Mansfield's  grief,  at  seeing  all  his  predictions 
falsified,  was  very  great. 

Home  was  a  sincere  lover  of  freedom  and  justice,  and 
naturally  opposed  the  policy  of  his  Government  towards 
the  Colonies.  When  he  published  his  libel,  in  June  1775, 
there  was  little,  if  any,  thought  in  the  British  mind  of 
the   momentous   events  that   must  follow   the  battle  of 

35 


Lexington.  Hence,  the  libel  seemed  most  inopportune, 
unsupported,  malicious  and  absurd.  But  Home  espoused 
the  American  cause  because  he  believed  it  was  right  in 
principle.  At  the  same  time  it  is  not  ncecessary  to 
question  the  sincerity  of  the  British  Government  in  the 
great  controversy.  The  conviction  of  Home  may  have 
been  correct  under  British  law ;  he  was  guilty,  perhaps, 
of  a  seditious  attack  on  his  Government,  which  was  a 
violation  of  that  law  at  that  time. 

When  the  conflict  at  Lexington  and  Concord  came 
there  were  expanding  hopes  in  the  Colonies  as  to  the 
possible  outcome.  Paul  Revere's  spirited  ride,  upon 
warning  the  people,  showed  the  rising  spirit  of  the 
people,  and  was  a  spectacle  of  heroism  and  fidelity  fitly 
commemorated  in  song  by  Longfellow  and  others.  Here 
are  some  of  Longfellow's  lines  : 

'  *  In  the  books  you  have  read, 
How  the  British  regulars  fired  and  fled  ; 
How  the  farmers  gave  them  ball  for  ball, 
From  behind  each  fence  and  farm-yard  wall. 
Chasing  the  red-coats  down  the  lane, 
The  crossing  the  fields  to  emerge  again 
Under  the  trees  at  the  turn  of  the  road, 
And  only  pausing  to  fire  and  load. 
So,  through  the  night,  rode  Paul  Revere  ; 
And  so,  through  the  night,  went  back  this  cry  of  alarm 
To  every  Middlesex  village  and  farm, 
A  cry  of  defiance,  and  not  of  fear, 
A  voice  in  the  darkness,  a  knock  at  the  door, 
And  a  word  that  shall  echo  forevermore." 

In  less  than  sixty  days  Bunker  Hill  followed.  While 
these  and  other  stirring  events  were  arousing  our  people, 
the  authorities  of  Great  Britain  were  taking  a  different 
view  and  were  solemnly  of  the  opinion  that  it  was 
rebellion  without  justification,  and  must  be  put  down  at 
every  hazard.  So  when  Lord  Mansfield  made  his  rulings, 
and  charged  the  jury  in  the  trial  of  Home,  he  acted, 
great  and  able  as  he  was,  upon  a  mistaken  view,  not 
perhaps  on  the  technical  questions  raised,  but  as  to  the 
real  meaning  of  the  American  uprising.  He  could  not 
comprehend  that  the  Colonies  were  to  be,  "and  of  right 
ought  to  be,  free  and  independent. " 

36 


In  referring  to  the  severe  sentence  imposed  upon  Mr. 
Home,  Lord  Brougham  said:  "Thus  a  bold  and  just 
denunciation  of  the  attack  made  upon  our  American 
brethren,  which  nowadays  would  rank  among  the  very- 
mildest  and  tamest  effusions  of  the  periodical  press, 
condemned  him  to  prison  for  one  year."  He  might 
have  added,  "and  a  loss  in  fine  and  costs  of  1200  pounds/' 

Our  national  Constitution  provides  that,  "Congress 
shall  make  no  law  abridging  the  freedom  of  speech,  or  of 
the  press."  Our  State  Constitutions  have  similar  pro- 
visions. We,  who  are  thus  protected  by  such  safeguards 
of  freedom,  are  apt  to  forget  from  what  darkness  we  have 
emerged  into  the  light,  and  how  costly  in  blood  and 
treasure  our  progress  has  been,  through  inquisitions  and 
massacres.  To  appreciate  this  more  fully,  we  must  look 
back,  if  not  further  than,  to  the  career  of  the  Twelve 
English  Judges,  who  under  the  inspiration  of  Stuart  Kings, 
crushed  freedom  of  thought  and  expression  in  the  most 
tyrannical  manner.  Here,  for  instance,  is  William  Pryn, 
a  zealous  Puritan  and  a  learned  lawyer,  who  wrote  against 
the  corrupt  practices  in  theatres.  He  was  brought  to  the 
Star  Chamber  in  1632,  and  Chief  Justice  Richardson,  of 
bad  repute,  said:  "Mr.  Pryn,  I  do  declare  you  to  be  a 
schism  maker  in  the  church,  a  sedition  sower  in  the 
commonwealth,  a  wolf  in  sheep's  clothing;  in  a  word, 
omnium  malorum  nequissimus "  (the  wickedest  of  all 
scoundrels).  "I  shall  fine  him  10,000  pounds,  which  is 
more  than  he  is  worth,  yet  he  deserves  it.  I  will  not  set 
him  at  liberty,  no  more  than  a  mad  dog,  who  though  he 
cannot  bite,  yet  will  he  foam,  he  is  fit  to  live  in  dens  with 
such  beasts  of  prey  as  wolves  and  tigers,  like  himself; 
therefore,  I  do  condemn  him  to  perpetual  imprisonment, 
as  those  monsters  that  are  not  fit  to  live  among  men,  nor 
to  see  light.  I  would  have  him  branded  in  the  forehead, 
slit  in  the  nose,  and  his  ears  cropped,  too."  This  part  of 
the  sentence  was  executed  the  7th  and  10th  of  May,  1633, 
thirteen  years  after  the  landing  of  the  Pilgrim  Fathers. 
No  wonder  they  left  the  country. 

Now  comes  the  pious  and  venerable  Richard  Baxter, 
selected  for  a  victim,  and  brought  before  Judge  Jeffreys 
in  the  Star  Chamber.  Baxter's  offence  was  that  in  a 
Commentary  on  the  New  Testament,  he  had  complained 

37 


with  some  bitterness  of  the  persecution  which  the 
Dissenters  suffered.  As  Lord  Macaulay  tells  the  story, 
it  was  adjudged  a  crime  not  to  use  the  Prayer  Book.  For 
this  men  had  been  driven  from  their  homes,  stripped  of 
their  property,  and  locked  up  in  dungeons.  An  informa- 
tion was  filed  against  poor  Baxter,  oppressed,  as  he  was, 
by  age  and  infirmities.  The  accused  man  begged  for 
time  to  prepare  his  defence.  Jeffreys  burst  into  a  storm 
of  rage;  "Not  a  minute,"  he  cried,  "  to  save  his  life;  I 
can  deal  with  saints,  as  well  as  with  sinners.  There  stands 
Oates  on  one  side  of  the  pillory,  and  if  Baxter  stood  on 
the  other,  the  two  greatest  rogues  in  the  Kingdom  would 
stand  together. "  When  the  trial  came  on,  at  Guildhall, 
Baxter's  friends,  who  loved  and  honored  him,  filled  the 
court.  At  his  side  stood  Doctor  William  Bates,  one  of 
the  mo{5t  eminent  non-conformist  divines.  Two  Whig 
barristers,  of  great  note,  Pollexpen  and  Wallop,  appeared 
for  the  defendant.  As  Pollexpen  began  to  address  the 
jury,  Jeffreys  broke  forth:  "  Pollexpen,  I  know  you  well, 
I  will  set  a  mark  on  you ;  you  are  the  patron  of  the  faction. 
This  is  an  old  rogue,  a  schismatical  knave,  a  hypocritical 
villian.  He  hates  the  Liturgy,  he  would  have  nothing 
but  long-winded  cant,  without  book."  And  so  Jeffreys 
went  on  and  called  Baxter  a  dog,  and  swore  that  it  would 
be  no  more  than  justice  to  whip  such  a  villian  through  the 
city.  Wallop,  the  associate  barrister,  then  interposed, 
but  was  quickly  silenced.  Then  Baxter  himself  attempted 
to  put  in  a  word,  but  was  overwhelmed  by  a  torrent  of 
abuse,  calling  Baxter  a  M  snivelling  Presbyterian,"  and 
fixing  his  savage  eye  on  Bates,  said:  "There  is  a  doctor 
of  the  party  at  your  elbow,  but,  by  the  grace  of  God 
Almighty,  I  will  crush  you  all. ■'  The  noise  of  weeping 
was  heard  from  some  of  those  who  surrounded  Baxter. 
"Snivelling  calves,"  said  the  Jiidge.  He  was  sentenced 
to  pay  a  fine  of  500  marks,  to  lie  in  prison  till  he  paid  it, 
and  be  bound  for  good  behaviour  for  seven  years.  It  is 
said  Jeffreys  wished  him  to  be  whipped  at  the  tail  of  a 
cart.  The  King  remitted  his  fine,  but  he  was  kept  in 
prison  three  years  and  six  months.  It  is  obvious  that  in 
the  two  noted  instances,  cited  from  many,  the  accused 
were  punished  not  so  much  for  what  they  had  written  as 
for  the  fact  that  they  were  in  favor  of  a  larger  personal 

3* 


liberty  than  the  tyrannical  authorities  would  concede. 
Time  will  not  permit  further  citations  showing  the 
history  of  the  fight  that  has  been  going  on  many  years 
for  freedom  of  thought  and  speech.  Compared  with 
numerous  instances  in  prior  history,  the  treatment  of 
Home  was  moderate,  yet  a  few  years  later  it  looked 
severe  and  outrageous.  While  Attorney-General  Thurlow 
urged  the  pillory  for  Home,  Mansfield  did  not  inflict  it. 
Tracing  English  history  in  a  sequential  sense  in  our  own 
Colonial  and  later  history,  we  find  this  despotic  tendency 
to  suppress  personal  freedom.  Not  to  cite  cases  in  our 
Colonial  history,  we  had  a  noted  one  as  late  as  in  1854,  when 
an  attempt  was  made  in  Boston,  through  indictment,  to 
punish  Rev.  Theodore  Parker  and  Wendell  Phillips  for 
expressing  their  opinions  in  Faneuil  Hall  as  to  the 
Fugitive  Slave  Law,  and  the  methods  used  to  enforce 
it  in  the  case  of  Burns,  a  fugitive  slave,  which  aroused  a 
wide  interest  in  Boston  and  throughout  the  country.  In 
this  famous  case,  the  Federal  Judges,  though  eager  for 
the  indictment,  seem  to  have  got  tired  of  the  job,  and 
upon  a  motion  to  dismiss  the  indictment  upon  technical 
grounds,  promptly  granted  the  motion. 

The  history  of  liberty,  of  freedom  of  speech,  as  known 
to  English-speaking  people,  is  the  history  of  struggling 
oppressed  human  nature,  whether  in  our  own  or  in  the 
mother  country.  It  is  the  higher  aspiration  of  manhood 
to  live  nearer  to  Him  who  is  "  the  Author  of  Liberty." 

When  the  War  of  the  Revolution  came  to  an  end,  the 
British  constitution,  though  the  Colonies  were  lost, 
remained  substantially  as  we  now  know  it,  saving,  of 
course,  such  amendments  as  a  conservative  progress  has 
permitted.  The  American  Republic  was  wisely  estab- 
lished upon  the  basis  of  a  written  constitution  guaranteeing 
liberty  to  its  people.  Let  us  hope  that  both  nations  may 
help  by  arbitrations,  and  in  other  ways,  and  not  hinder 
what  is  best  for  humanity,  and  that  both  may  become 
more  and  more,  as  the  years  go  on,  co-operative  powers 
in  promoting  the  best  civilization  in  the  world. 


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